Uniform Sentencing Policy

This is an interpretive policy setting standards and procedures for the use of powers provided by the criminal law of the Navajo Nation and Navajo common law.  Courts have the inherent authority to adopt polices which “are addressed primarily to judges and other court official and designed to govern how cases shall be processed.”  American Bar Association, Standards Relating to Court Organization 13 (1990) (“uniform standards of justice” discussion).  The sentencing powers of the court are set out in 17 N.T.C. § 220 and related sections of the criminal code and this policy addresses the scope of authority permitted by them and Navajo common law.

The goals for a criminal sentence in the Courts of the Navajo Nation shall be:

1. Serve victims of crime. Courts shall require compensation for victims of crime by appropriate restitution or reparation orders (nalyeeh), where the defendant has the ability to pay or perform work. Courts shall enter appropriate orders to protect victims of crime in the future.
2. Rehabilitate offenders. Courts shall impose conditions of sentence to require the offender to acknowledge bad conduct, accept responsibility for the act, and take specific steps to deal with underlying problems. The process may require counseling by the court or other agencies the identification of underlying problems, such as poor self-esteem or alcohol dependence, and other steps to solve problems, which were the source of the offense. Courts should require defendants to enter into agreements regarding the steps required for rehabilitation. The Navajo Peacemaker Court should e used to address denial and find solutions within families.
3. Restore harmony. Courts shall consider the relationship of the offense to underlying problems, and where appropriate, enter orders to deal with reconciliation with the victim or with the offender’s community. The court shall consider Peacemaker Court proceedings to aid the process of counseling or address problems associated with the offense.
4. Talk out problems. Courts shall use the process of talking out problems during a sentencing hearing, through the Peacemaker Court, in separate counseling, or other available processes, to require that the problems of the offenses are talked out fully.
5. Deter future crime. Courts will seek practical solutions and approaches designed for the individual offender to prevent future harm and the commission of criminal offenses. The court should get the views of the victim, the victim’s family, the offender, the offender’s family, probation and parole officers, prosecutors, defenders and social service agencies to design practical and specific conditions of sentence.
6. Prevent Hooliganism. Hooliganism consists of “intentional actions grossly violating social order and expressing obvious disrespect to society.” It is “rowdyism, such as being drunk and disorderly and disturbing the public peace.” An otherwise minor offense is aggravated and should be treated more seriously when the defendant engages in acts of hooliganism, including vandalism. The court may utilize peacemaking to deal with that attitude.

This policy uses three definitions (with references to other definitions in bold type):

1. “Ability to pay” means the defendant’s reasonable capability to satisfy a court order to make restitution, pay a fine, or make some other payment. The court takes into consideration the defendant’s employment and income, property and assets, and future ability to obtain money or property to satisfy a court order. The court can impose time or installment payments or tailor the order to the means of the defendant. 17 N.T.C. § 222(c). The court can also order the transfer of property to the victim, or require other assurances include a peace bond or individual sureties.
2. “Actual damages” is the money value of damages or an injury actually sustained by a victim of a crime. They are assessed in the same manner as damages in a civil action.
3. “Avoidance” is an order of the court to require a defendant to stay away from a named person or group of persons (e.g. “The family of John Jones”) or stay away and out of a defined place.
4. A “bond” is a written promise to pay a fixed sum of money, or a sum certain, to a named person or entity by a stated period of time, or deliver specified property. Bonds usually require a surety. For example, “I will pay the sum of $1,000 to John Jones as restitution within 90 days of the date of this bond.” “I will deliver 20 head of sheep to John Jones by December 1, 1994.”
5. “Civil contempt” is court action to impose a penalty on someone who disobeys a court order to do something (e.g. make restitution). It is “civil” because, like an injunction, it requires someone to do something in the future. It is not punishment for a past act or failure to act. It is akin to “body execution” in the common law, where a judgment was satisfied by putting the judgment debtor’s body in jail. (Body execution has not been entirely abolished in the United States, and thee is still a “debtor’s prison” for those who refuse to pay child support or alimony.) For example, the court may jail an individual who fails to pay restitution or child support until that person actually pays or makes arrangements for payment. The maxim is that the defendant “has the keys to the jailhouse door in his own pocket,” or will be released when the order is obeyed. Civil Contempt is not a criminal charge.
6. A “civil judgment” is an order of the court which is permanent and which requires the payment of money, delivery of property, or permanently enjoins an individual to do an act or refrain from doing an act. The courts may issue civil judgments as part of the criminal process to grant a remedy to victims of crime. The civil penalty mentioned in various criminal statutes is a civil judgment for actual damages.
7. A “concurrent” sentence is one where the defendant is charged with more than one offense, and the court chooses to allow the defendant to serve time, suspend sentence or grant probation for all sentences to run from the same date, side by side.
8. A “consecutive sentence” is where a defendant is charged with more than one offense, and the court chooses to require the defendant to serve out each sentence, one after the other. Popularly, this is known as “stacking” sentences.
9. “Criminal contempt” is the court’s punishment of a defendant for a past act of disobedience of a court order or command. It is a new and separate criminal proceeding.
10. “Deterrence” is an attempt by the court to set conditions in a sentence to prevent a defendant from offending again. A deterrence plan requires a careful examination of the defendant’s motives, attitude, situation, and what actions may reach the defendant’s mind to prevent a future offense. Conditions may be punitive to punish a defendant or teach him a lesson,” or they may be a form of rehabilitation.
11. A “fine” is a money penalty, set by a criminal statute, which is paid into the Navajo Nation general fund. The purpose of a fine is to deter future misconduct by assessing a monetary penalty. The court can require time payments by indigent defendants. 17 N.T.C. § 222(b) (method of payment is in the discretion of the court).
12. “Imposition” of a sentence is the court’s act of defining a sentence, stating it, and requiring it to be carried out.
13. “Incarceration” is a court order to require the Navajo Nation police or others to physically confine a person, depriving him or her of liberty or freedom of movement. The court may define the conditions of incarceration (e.g. a day sentence of eight hours of work).
14. An “indigent” is a person who, by reason of unemployment, low income, or a lack of property, cannot pay a fine or make restitution. Poverty is not an excuse to avoid responsibility to the Navajo Nation or another, so the court should explore all alternatives before releasing an individual from responsibility due to indigence. Alternatives include time payments, seeking employment, turning over property, doing work for others, obtaining sureties for a bond, or other alternatives to actual payment of money. An indigent is denied equal protection of the law only when that person is required to serve jail time for actual inability to pay.
15. A “license” is a permission by a government to do a thing, engage in an act, or conduct an activity, sometimes the document is called something else, e.g. a “grazing permit,” an “agricultural permit or lease,” etc. Where a government agency—federal, state, or Indian nation—requires official permission to do something, that is a “license which may be revoked by the court pursuant to 17 N.T.C. § 220(c).
16. A “mittimus” is an order, which remands a defendant to custody, or orders that the defendant be placed in confinement, i.e. jail. It is an order directed to an official to do something with a defendant.
17. A “multiple sentence” is the situation where a defendant is charged with more than one offense. The court has the discretion to impose a concurrent sentence or a consecutive one 17 N.T.C. § 225.
18. “Nalyeeh” is a Navajo legal term, which refers to reparation or restitution, but it has the wider meaning of compensation to a victim so thee will be “no hard feelings.” It is also a discussion of plans to build or restore relationships (“restorative justice”) which is particularly appropriate for the Navajo Peacemaker Court.
19. “Parole” is the power to release a defendant from jail, on condition, after serving one-half of the sentence imposed by the court. 17 N.T.C. § 1819. All the considerations of policy apply to parole. The court may utilize a parole board to assist the process and charge defendant assessments to pay the costs of the board.
20. A “peace bond” is a written promise to keep the peace or refrain from doing specified conduct (e.g. assault on a person or a member of that person’s family; staying away from someone) under penalty of forfeiting money or property. A peace bond can consist of money paid into court, property, or the written promise to pay a certain sum of money if the conditions are violated. The court may require sureties to promise to make payment if conditions are violated. Payment can be to the Navajo Nation, a victim, or a program (e.g. a battered woman’s shelter). Peace bonds have not been held to be unconstitutional as a violation of due process, but of equal protection, only where the defendant cannot afford a commercial bond. A bond can be commercial, where an insurance company agrees to pay, or one by private individuals who knowingly cosign and agree to pay. The Navajo Peacemaker Court can guide parties to enter into a form of peace bond, using the family and clan as the guarantors or “traditional probation officers.”
21. “Probation” is where the court imposes a sentence, but suspends all or part of it. And allows release on conditions. A defendant must serve a minimum of one-half of the total sentence of incarceration before becoming eligible for parole. 17 N.T.C. § 224. The court must set conditions in writing and the defendant must sign the conditions document, agreeing to abide by the court’s requirements.
22. A “public servant” within the meaning of 17 N.T.C. § 220(c) is any person employed as a full-time, part-time, or contract employee (including independent contractors; see also license) by an agency of the Navajo Nation, an entity of the Navajo Nation, or other program operated or controlled by the Navajo Nation. The position must not be elective (see, Navajo Nation Election Code for elective positions).
23. “Rehabilitation” is designed to address a defendant’s personal problems and thus assure the person will not offend again. It can include alcohol treatment, anger control programs, the Navajo Peacemaker Court, or any other method which addresses the defendant’s self-awareness of a problem (e.g. self-esteem, denial, minimalization [“It’s no big deal”], or externalization [blaming others or a condition such as alcoholism]) and willingness to do something about it.
24. “Reparation” is an order of the court, which requires a defendant to make a victim of injury or property damage whole for monetary losses the victim has. A reparation order is not like damages in a civil judgment, and the court may use hearsay information to set an approximate amount, which will make a victim whole.
25. “Restorative justice” is an approach to law whereby the court seeks to restore or rebuild relationships among people who are in an ongoing or continuing relationship. Such is a fundamental principle of Navajo common law and the goal of peacemaking. An offender giving an apology to the victim is an essential element of restorative justice. The court may taking the giving of an apology following an admission of guilt into account to mitigate sentence, or use a refusal to apologize upon a guilty plea or clear proof of guilt to enhance sentence.
26. “Restitution” is an order of the court to require a defendant to make a victim whole for injuries or damages. It can be full or partial compensation, depending upon the defendant’s ability to pay, and it can be in the form of a fixed sum of money, work for the victim, or work for the community. The technical meaning of the term is the return of a stolen item, but it is generally used to mean reparation.
27. Revocation of a suspended sentence or probation is the act of bringing a defendant back before the court to defend against an accusation that person has failed to obey conditions of the suspended sentence, probation, or release. For that reason, conditions of sentence should be specific, and defendant should acknowledge understanding of them in writing. A defendant has a right to rebut an accusation he or she violated a condition of sentence, and the burden is on the defendant to show there was no violation. Revocation proceedings are swift and informal, and hearsay information may be used to find a violation revoke probation.
28. “Sentencing considerations” are an assessment of the likelihood a defendant will offend again and the seriousness of the offense for sentencing, based on the offender’s (1) prior record, (2) family circumstances (i.e. dependents), (3) employment status, and (4) “any other circumstances which will aid in imposing a just and fair sentence.” The court may receive hearsay information about them, ask the defendant to disclosure the information to the court or a probation officer, and otherwise receive any information, which will guide the court.
29. “Shaming” is a requirement that a defendant do something which will bring him to public attention as a wrongdoer (e.g. wearing special garb with a printed announcement—“I am a thief” – or having a bumper sticker—“I am a drunk driver.”) or the court doing something, which will shame the offender (e.g. require community service wearing distinctive clothing). Shaming is a cultural practice, which depends upon what will hurt the defendant by making him or her, acknowledge wrongdoing.
30. A “surety” is a person or organization, which co-signs a bond or pledge to pay money or give over property. A surety will pay the money or deliver stated property in the event the defendant fails to do so. The conditions of a bond a surety signs should be specific as to the amount of money or identification of property, the person to whom the payment must be made, and the time for payment.
31. A “suspended sentence” is suspension of the imposition of sentence after a finding of guilt. The court suspends imposition of the sentence of a period of time and imposes conditions to be followed or a sentence may be imposed, 17 N.T.C. § 220(b). It is like the “deferred imposition of sentence” in many state codes, where the court withholds sentencing for a period of time to monitor conduct and successful completion of “another chance.” When imposing a suspended sentence, the court should warn the defendant of the maximum penalty allowed by the statute (including cumulative or “stacked” sentences) and set a time period for suspension of imposition of the sentence and impose conditions. It should be a “reasonable” period of time. If the defendant violates the conditions, the court may bring him or her back in and then set a sentence. If the defendant complies with the conditions, he or she may get an absolute release at the end of the term. The release may simply be doing nothing if the defendant complies.
32. “Talk out problems” is a traditional Navajo justice method which is designed to address denial (e.g. “I don’t have a drinking problem”), minimalization (“It’s not big deal”) and externalization or blaming (“She deserved it” or I can’t help it, I’m an alcohol”). People have bad attitudes about themselves, others, or the legal system, and “talking out” educates people on their roles and responsibilities.
33. A “traditional probation officer” is a Navajo common law concept. It is that when an offender injures another, the offender’s clan is responsible to assist with the payment of nalyeeh and help conclude a plan by consensus. The family and clan then assume responsibility to assure future good conduct by the offender.

Victims of crime in the Navajo Nation have a right to:

1. participate in the criminal justice system
2. recover a judgment for damages in a civil action against the criminal, accessories, or negligent third-party defendants or to receive a civil judgment for damages in the criminal process:
1. Compensation may include benefits from programs to aid crime victims.
2. The court should provide for restitution or nalyeeh for victims.
3. be free of intimidation
4. share in profits from exploitation of the criminal’s version of the crime
5. seek peacemaking
6. receive special treatment and consideration if the victim is elderly, a child, disabled or is subjected to rape or domestic violence. Victims of such offenses are particularly vulnerable, and they should receive special attention in the criminal law process.

See, James Stark and Howard W. Goldstein, The Rights of Crime Victims 11 (1985).

The court should enforce its judgments and use incarceration where a defendant violates the trust of the court and fails to obey an order or condition of sentence.

The court shall presume that incarceration or jailing is not an appropriate sentence unless the offense caused serous bodily injury to a victim or the defendant will not give assurances of good conduct in the future. The court should impose a jail sentence where such is needed to protect persons or the public at large.

The court may impose incarceration where such is necessary to address serious or violent crime, protect victims, protect the public in general, or otherwise implement the goals of criminal law. The court should oversee the enforcement of a sentence of incarceration.

Before the court passes or imposes any sentence, a criminal defendant has a right of Allocation. That is the right, personally or through counsel, to inform the court of special circumstances which may mitigate or lessen the sentence. It is the right to “beg the court for mercy” when imposing sentence.

It is the right to say, “I’m guilty, but….”  The court should affirmatively invite each defendant to speak to the severity of the sentence.  The court should tell the defendant the maximum penalty involved and the possible consequences and allow the defendant to respond.  Defendants should be urged to address their role in an offense and the impact of their conduct on victims or themselves (e.g. in “victimless” crime) before sentence is imposed.  The court should make the opportunity to speak clear and put the fact that the defendant has waived the right to Allocution after an opportunity to exercise it on the record.

When the sentence is imposed, the court should make its conditions a contract between the defendant and the court by putting the conditions in writing, explaining them to the defendant, and making the defendant agree to them in writing.  The requirements should be clear, precise and explained well.  The court may require a probation officer to counsel the defendant and record the fact of that counseling so a defendant will not have the excuse that he or she did not understand the sentence.

Court may require full or partial restitution or reparation (nalyeeh), impose a civil penalty, and place reasonable restrictions upon convicted defendants when imposing sentence, suspending a sentence or place a defendant on probation.  Orders of restitution, civil penalties, or other conditions of sentence which require the payment of monies, (the surrender or delivery or property) or the performance of an act, are permanent civil judgments.

Where a criminal statute has a requirement that the defendant pay actual damages, the court may enter an order assessing such damages as a final civil judgment.

The courts may, upon the violation of a condition of probation or a suspended sentence, revoke probation or impose a sentence, following notice and an opportunity to be heard.

1. Criminal contempt. Where a defendant disobeys a condition of a sentence, the court may use its criminal contempt power to impose an appropriate punishment to punish past disobedience to a court order.
2. Civil contempt. Where a defendant disobeys an order or condition of sentence for the payment of restitution, reparation, or actual damages (nalyeeh), the court may use its civil contempt power to incarcerate the defendant until such time as the order is obeyed.
3. Ability to pay. Prior the imposition of jailing for contempt, the court must determine that the individual had the ability to pay or to carryout the order.